Washington Bureaucrats Unconstitutionally Making Public Policy

Washington, D.C., is the country’s last “company town,” and the big industry is the federal government. So it isn’t received well here when someone dares to question the size or scope of government.

Recently, law professor Jonathan Turley took to the pages of The Washington Post to warn about the growth of the administrative state. “The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself,” Turley wrote. “Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

Predictably, some career bureaucrats didn’t like Turley’s message and registered their protests with letters to the Post. “If Mr. Turley were to check the beginning of regulations published in the Federal Register, he would see that these civil servants also have phone numbers where they can be reached,” one wrote. “Agencies like mine go to great pains to be open about our efforts and are subject to vigorous scrutiny by Congress and the courts,” added another. “They end up knowing just about everything but our shirt size. How much more transparent can we get?”

The complaints miss the point. Certainly many bureaucrats are nice people, and certainly they can be reached by phone, fax, or e-mail. The problem isn’t the people in the government; it’s that those people don’t have the constitutional authority to be making public policy.

The administrative state combines the powers of government in the hands of the same officials in violation of the separation of powers principle.

It is based on unconstitutional delegations of legislative power from Congress to bureaucrats and administrators.

It violates the principle of republican government, which requires that power—especially legislative power—be derived from the consent of the governed, expressed directly or indirectly through elections.

The administrative process it follows to adjudicate disputes is fundamentally opposed to the protections offered by the rule of law in the traditional judicial process.

The Founders gave us a system carefully crafted to divide power, but we’ve allowed bureaucrats to expand their reach. “Do we want to be governed by the rule of law as hammered out in open legislative debate, carried on by our elected representatives, directly accountable to us? Or do we wish to be governed by the expanding rule of regulation, the rule of administrators who are most certainly not accountable to us?” asks Heritage’s Bob Moffit. “The rule of regulation is the rule of regulators. But today, the rule of regulators is arbitrary and unaccountable government.”

All that regulation comes with a big price tag. “Annual regulatory costs increased by more than $23.5 billion during President Barack Obama’s fourth year in office—and by a total of nearly $70 billion during the first term,” write James Gattuso and Diane Katz in the latest edition of Heritage’s Red Tape Rising.

Some of those regulations may well be helpful, but only those that result from a constitutional process are fully legitimate. To ensure that they are, Moffit urges states to push back against the federal bureaucracy. “Beyond challenging national power in the federal courts, state governors and legislators should also respond politicallyto Washington’s regulatory excesses,” he writes. “The Founders indeed expected state officials to do precisely that in those instances where the national intrusions were ‘unwarranted.’”

Americans deserve a government that’s strictly limited along constitutional lines. That would be sure to generate some polite but firm letters from Washington bureaucrats. But it would be a major step forward for the rest of us.

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